Evaluating Bush's Pick for Attorney General

Agrast's Statement on Mukasey Nomination

By Mark Agrast | September 17, 2007

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The Senate must consider carefully whether, if confirmed, Judge Mukasey will carry out his duties with the independence and integrity that eluded his predecessor.

On one hand, Judge Mukasey’s record suggests that he will be a staunch defender of the administration’s aggressive view of the scope of executive power, particularly in regard to the “war on terror.” On the other hand, there is at least some evidence to suggest that he knows how to say no when the administration oversteps its bounds.

As a federal district court judge, Mukasey considered the case of Jose Padilla, a U.S. citizen seized at Chicago’s O’Hare Airport and held for more than five years as an enemy combatant before being brought to trial. In 2002, Mukasey handed the government a split decision, ruling that the president had the authority to designate Padilla as an enemy combatant, but that Padilla had the right to consult with an attorney in order to challenge the designation.

That decision hardly makes Mukasey a wild-eyed civil libertarian. Indeed, his conclusion that the president had the authority to detain an American citizen apprehended in the United States as an enemy combatant placed him well to the right of the Court of Appeals, which ultimately reversed him. But his insistence that the government give Padilla access to counsel was a rare act of principle at a time when few in Congress or the courts were willing to defy the administration.

The confirmation process will afford senators an opportunity to determine whether Mukasey would display similar skepticism of exorbitant claims of executive power if he becomes our next Attorney General. It will also give the Senate and the American people an opportunity to assess his commitment to checks and balances. They must be satisfied that he will conduct thorough investigations of wrongdoing within the Department of Justice and cooperate fully with congressional inquiries. Only then can he begin to restore to the department the honor and credibility it has lost.